Egbert v. Egbert

• Citation: 235 Ind. 405,132 N.E.2d 910
• Decision Date: 21 March 1956
• Docket Number: No. 29337,29337
• Parties: William F. EGBERT, Appellant, v. William C. EGBERT, Don F. Cameron, Angus L. Cameron, Lisle E. McEntarfer, Mary A. McEntarfer, DeKalb Mortgage Loan Company, Trustee, and DeKalb Mortgage Loan Company, Trustee or Bearer, Appellees.
• Court: Indiana Supreme Court

Page 910

132 N.E.2d 910

235 Ind. 405

William F. EGBERT, Appellant, v. William C. EGBERT, Don F. Cameron, Angus L. Cameron, Lisle E. McEntarfer, Mary A. McEntarfer, DeKalb Mortgage Loan Company, Trustee, and DeKalb Mortgage Loan Company, Trustee or Bearer, Appellees.

No. 29337.

Supreme Court of Indiana.

March 21, 1956.

J. A. Bruggeman, Otto E. Grant, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellant.

Hunt, Longfellow & Suedhoff, Fort Wayne, Gates & Gates, Columbia City, for all appellees except Lisle E. McEntarfer and Mary A. McEntarfer.

Hussleman & Husselman, Auburn, for appellees Lisle E. McEntarfer and Mary A. McEntarfer.

EMMERT, Judge.

This appeal reaches this court by transfer from the Appellate Court for failure of four judges to concur under § 4-209, Burns' 1946 Replacement. The appeal is from a judgment on a special finding of facts and conclusions of law that appellant take nothing by his complaint, and that title to the real estate involved be quieted in the appellees Lisle E. McEntarfer and Mary A. McEntarfer against appellant William F. Egbert, and the DeKalb Mortgage Loan Company, Trustee, and all persons claiming through or under either of them. The errors alleged which are not waived involve the law of the case, and the court's rulings on admission of certain evidence.

The facts involved have been a fruitful source of litigation. The first appeal was decided by this court in Egbert v. Egbert, 1948, 226 Ind. 346, 80 N.E.2d 104. The second appeal was decided by the Appellate Court in Egbert v. Egbert, 1950, 120 Ind.App. 670, 95 N.E.2d 637. In 1946 William C. Egbert and Alice F. Egbert commenced an action in the DeKalb Circuit Court to quiet title to the real estate involved against appellees Lisle E. McEntarfer and Mary A. McEntarfer, Don F. Cameron and Angus L. Cameron. This resulted in a decision for the defendants to that action. It also appears that the McEnterfers brought an action against William C. Egbert and Alice F. Egbert for possession of the real estate, which was determined adversely to such defendants.

On February 28, 1926, William C. Egbert and Alice F. Egbert, the father and mother of appellant, executed what was designated as a first mortgage bond, and generally referred to in the evidence as a note, in the principal sum of $5,250, payable at the end of five years, to the DeKalb Mortgage Loan Company, Trustee, or bearer, to secure the payment of which, and as a part of the same transaction the makers executed a mortgage on 80 acres of real hereafter they owned in DeKalb County, hereafter referred to as the Egbert farm. The note was endorsed without recourse and transferred to Dr. John F. Cameron, a practicing physician residing at Hamilton, Indiana.

The note was not paid at maturity, and on May 2, 1934, was in default, and on said day the mortgagors William C. Egbert and Alice F. Egbert, his wife, accompanied by their son, the appellant, who was fourteen years of age at the time, went with Dr. John F. Cameron to the law office of Dan M. Link in Auburn, where the mortgagors signed and acknowledged a warranty deed for the real estate conveying it to appellees Don F. Cameron of Allen County, Indiana, and Angus L. Cameron of Minot, North Dakota, as tenants in common. Each of the grantees was a practicing physician and son of Dr. John F. Cameron. The deed stated, 'The grantees accept this conveyance subject to a certain mortgage lien thereon in the name of John F. Cameron and subject to ditch and tax liens.' At the same time and as a part of the same transaction Dr. John F. Cameron, as agent for parties of the first part, and the mortgagors, as parties of the second part, signed a contract which recited the mortgagors and conveyed the real estate to Don F. Cameron and Angus L. Cameron, as parties of the first part, and bound them to sell the real estate to the second parties on or before April 1, 1935, upon demand made by the second parties, for the amount of the mortgage in the name of Dr. John F. Cameron, plus interest, taxes and assessments paid by parties of the first part, the conveyance to be made subject to any existing liens on the real estate. The second parties were to retain possession until April 1, 1935.

Appellant testified that he knew when the deed was executed it was to satisfy the mortgage debt his parents owed on the farm and that he thought when the deed was signed the debt was wiped out. Alice F. Egbert died in July, 1947. The deposition of William C. Egbert was introduced in evidence, by which he stated that after the deed was executed he rented the farm on a cash rental basis until the death of Dr. John F. Cameron in 1944; that Dr. Cameron paid the taxes and insurance, that after the deed was executed he paid nothing on the note.

Dan M. Link, who acted as attorney in drafting the deed and contract to reconvey, testified by deposition for the first time in the trial in the Whitley Circuit Court. He stated that the Egberts and Dr. John F. Cameron came in his law office together, and that the documents were executed to save foreclosure, that his steongrapher typed the papers which he read to the parties before signing, and that the deed and contract were signed May 2, 1934, after which Dr. John F. Cameron took them with him, and that all the Egberts were present during the conversations on the transaction.

Appellant testified that Dr. John F. Cameron was his great-uncle and had loaned money to him to complete his higher education, which was repaid, that in the summer of 1937 Dr. John F. Cameron came to the Egbert home at the Egbert farm, where, in the presence of his father and mother, the Doctor told him he wanted to give him some papers, naming the mortgage and mortgage bond, and gave them to him in an envelope; that thereafter he filed them away with some of his possessions; that he never paid any intangible tax on the note and never tried to collect any interest, that he thought the note and mortgage were of no value. In 1945 he learned the Camerons were negotiating for the sale of the farm to the McEntarfers, and he tried to buy the farm from Don F. Cameron and Angus L. Cameron, which was after the death of Dr. John F. Cameron in September, 1944. During his talk with the Camerons he never mentioned he had the mortgage on the farm, but he offered to pay $6,000 and asked the Camerons to finance it. That he never thought the note had any value until he had talked to his attorneys, Mr. Howard Grimm and Rex Emerick. He contacted the McEntarfers to see if they would waive their offer to purchase, which they refused. After Dr. Don Cameron had refused to negotiate with Howard Grimm as attorney for appellant, appellant brought the action to foreclose the mortgage against his father and mother, the mortgagors, and the other appellees.

At the time this cause was first tried in the Noble Circuit Court the appellees Cameron and Cameron and McEntarfer and McEntarfer put the amended complaint at issue by several paragraphs of answer, the first denying and admitting certain rhetorical paragraphs, the second pleading extinguishment of the debt by merger of the mortgage lien with the legal title to the real estate, the third a general answer of payment, the fifth paragraph pleading merger and payment, and the sixth paragraph denying that title to the note and mortgage was ever transferred to the appellant by John F. Cameron. The fourth paragraph of answer pleaded the statute of limitations, but to this a demurrer had been sustained. See Egbert v. Egbert, 1948, 226 Ind. 346, 349, 80 N.E.2d 104, supra.

When the cause was retried in the Huntington Circuit Court the issues had not been changed since the determination of the first appeal. However, before the cause was again tried in the Whitley Circuit Court the appellees Cameron and Cameron and McEntarfer and McEntarfer had filed a seventh paragraph of answer to plaintiff's amended complaint, which alleged the mortgage note had been discharged by an accord and satisfaction by reason of the specific facts therein detailed which resulted in the execution of the deed and the contract on May 2, 1934. The answer further averred that William C. and Alice F. Egbert became tenants of Don F. Cameron and Angus L. Cameron and paid cash rent for the real estate, but that the Egberts never exercised their option to purchase the real estate on or before April 1, 1935.

The appellees McEntarfer and McEntarfer also filed a cross-complaint to quiet their title in said real state against the appellant William F. Egbert and the DeKalb Mortgage Loan Company, Trustee. The plaintiff filed an answer to the cross-complaint and a reply to the seventh paragraph of answer.

Appellant insists that the prior appeals to this court and the Appellate Court definitely established the law of the case, and that, therefore, the judgment of the Whitley Circuit Court must be reversed. 'It is a general rule, many times followed in this state, that a decision of this court shall constitute 'the law of the case,' so far as the principle involved is applicable, throughout all stages of the cause thereafter. [Citing cases.]' Board of Commissioners of Huntington County v. Bonebrake, 1896, 146 Ind. 311, 313, 45 N.E. 470. The rule of the law of the case is to be distinguished from the rules of res judicata. 'The rule of 'the law of the case,' thus limited to the point or points considered and decided on the first appeal, meets our full approval. But we can not agree to the claim of appellee's counsel, that 'the law of the case' precludes us from considering and deciding now, on the second appeal of this cause, any questions which might have been, but were not, considered and decided as the case was presented on the first appeal. Such claim seems to us unreasonable, although we are aware that it is supported by many respectable authorities, and even by the language used in some of the reported opinions of this court.' Davis v. Krug, 1884, 95...